# H. H. MAHARAJADIDRAJA MADHAV RAO JIWAJI RAO SCINDIA BAHADUR & ORS v. UNION OF INDIA

- **Citation:** [1971] 3 S.C.R. 9
- **Court:** Supreme Court of India
- **Decided:** 1970-12-15
- **Case number:** Writ Petitions Nos. 376 to 383 of 1970
- **Bench:** M .. Hidayatullah, J.C. Shah, S. M. Sikri, J.M. Shelat, V. Bhargava, G. K. Mitter, C. A. Vaidialingam, K. S. Hegde, A. N. Grover, A. N. Ray, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/h-h-maharajadidraja-madhav-rao-jiwaji-rao-scindia-bahadur-ors-v-union-of-india-5468
- **Pages:** 223

## Headnote

Constitution of India, 1950-Article 366(22)-Scope of-Recognition
of Rulers by President-Order by President "derecognising'' all RulersValidity of order-Power, if political-If exercise of paramountcy rights.
Constitution of India 1950--Article 291-Article if cremes an obligation to pay Privy Purse-Repudiation of obligation if act of State-"Charged
on . ... the Consolidated Fund of India'', meaning of-Article if a provision
"relating to" covenant within the n1eaning of Article 363.
Constitution ,of India, 1950-Article 363-Exclusion of jurisdiction of
Courts--Scope of exclusionary clauses-Determining the nieaning of artiD
cles 366(22), 291, 362 and 363, if within bar of Article 363-"Dispute
arising out of provision of the Constit11Uon relating to covenant", meaning
-Article. if "recreation'' of para1nountcy.
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Constitution of India, 1950--Article 362-lf a provision "relating to"
Covenent etc. within the -1neaning of Article 363.
Constitution of India,
1950--Articles 19(1) (/) and 31 and Article
32-0rder of President under Article 36.§(22)-0rder of President under
Article 366(22) "derecognising" Rulers-Repudiation of liability to pay
Privy Purse and denial of rights and privileges-If violation of fundamental rights-Maintainabi/i.'y of petition-Privy Purse-If property.
On the promulgation of the Indian Independence Act, 1947, the Princely States adjoining the Dominion of India merged with the Dominion of
India. The instruments of merger provided for .the integration of the States
and guaranteed to the Rulers the Privy Purse, succession according to law
and custom to the gaddi of the State and personal rights, privileges, dignities and titles. These instruments were concurred in and guaranteed by
the Dominion of India.
Later, the States integrated with the Union of
India under the Constitution of India, 1950, the Rulers abandoning all
authority in regard to their territories. Special provisions were enacted in
the Constitution regardin¥ Privy Purses and the rights and privileges of the
erstwhile Rulers.
By article 291, the sums guaranteed by the Dominion of
India to any Ruler as Privy Purae under any covenant or agreement was
to be charge<l on and paid out of the Consolidated Fund of India and the
sums so paid were to be exempt from all taices on income. Ry article 362
the Parliament, the State Legislatures and the executive of the Union and
the States were enjoined to have due regard to the guarantees and assurances
under the covenants and agreements between
the Governments of the
Dominion of India and the heads df the former Indian States. Also,
provisions were made in various statutes conferring on the "Rulers" certain
privileges and benefits.
By Art. 366(22) a "Ruler" was defin,,d t<> mean
the prince, chief or other peraon by whom covenant and agreements
were entered into and who "for the time being" was recognised by the
President as the Ruler and included any person who "for the time being"
10
SUPREME COURT REPORTS
(1971]3 S.C.R.
was recognised by the President as the successor of such Ruler. Article
A
363 excluded the jurisdiction of the Supreme Court and all other courts
"in respect of any dispute arising out of any provision of a treaty, ·agreement, covenant etc." or in any dispute "in respect of any right accruing
under or any liability or obligation arising out of any of the provisions of
the Constitution relating to any such treaty, agreement, covenant" etc.
On September 2, 1970, a Bill intituled the Constitution (Twenty Fourth
:B
Amendment) Bill, 1970, and providing that "Articles 291 and 362 of the
Constitution and clause (22) of article 366 shall be omitted" was introdnced
in the Lok Sabha. The Bill was declared passed. On September 5, 1970,
the motion for, copsideration of the Bill did not obtain in the Rajya Sabha
the requisite majority of not less than two-thirds of the members present
and voting as required by Art. 368 of the. Constitution. The motion for introduction of the Bill was declared lost. A few ho

## Text

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H. H. MAHARAJADIDRAJA MADHAV RAO JIWAJI RAO
SCINDIA BAHADUR & ORS.
.
v.
UNION OF INDIA
December 15, 1970
(M .. HIDAYATULLAH, C.J., J.C. SHAH, S. M. SIKRI, J.M. SHELAT,
V. BHARGAVA, G. K. MITTER, C. A. VAIDIALINGAM, K. S. HEGDE,
A. N. GROVER, A. N. RAY AND I. D. DUA, JJ.J
Constitution of India, 1950-Article 366(22)-Scope of-Recognition
of Rulers by President-Order by President "derecognising'' all RulersValidity of order-Power, if political-If exercise of paramountcy rights.
Constitution of India 1950--Article 291-Article if cremes an obligation to pay Privy Purse-Repudiation of obligation if act of State-"Charged
on . ... the Consolidated Fund of India'', meaning of-Article if a provision
"relating to" covenant within the n1eaning of Article 363.
Constitution ,of India, 1950-Article 363-Exclusion of jurisdiction of
Courts--Scope of exclusionary clauses-Determining the nieaning of artiD
cles 366(22), 291, 362 and 363, if within bar of Article 363-"Dispute
arising out of provision of the Constit11Uon relating to covenant", meaning
-Article. if "recreation'' of para1nountcy.
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Constitution of India, 1950--Article 362-lf a provision "relating to"
Covenent etc. within the -1neaning of Article 363.
Constitution of India,
1950--Articles 19(1) (/) and 31 and Article
32-0rder of President under Article 36.§(22)-0rder of President under
Article 366(22) "derecognising" Rulers-Repudiation of liability to pay
Privy Purse and denial of rights and privileges-If violation of fundamental rights-Maintainabi/i.'y of petition-Privy Purse-If property.
On the promulgation of the Indian Independence Act, 1947, the Princely States adjoining the Dominion of India merged with the Dominion of
India. The instruments of merger provided for .the integration of the States
and guaranteed to the Rulers the Privy Purse, succession according to law
and custom to the gaddi of the State and personal rights, privileges, dignities and titles. These instruments were concurred in and guaranteed by
the Dominion of India.
Later, the States integrated with the Union of
India under the Constitution of India, 1950, the Rulers abandoning all
authority in regard to their territories. Special provisions were enacted in
the Constitution regardin¥ Privy Purses and the rights and privileges of the
erstwhile Rulers.
By article 291, the sums guaranteed by the Dominion of
India to any Ruler as Privy Purae under any covenant or agreement was
to be charge<l on and paid out of the Consolidated Fund of India and the
sums so paid were to be exempt from all taices on income. Ry article 362
the Parliament, the State Legislatures and the executive of the Union and
the States were enjoined to have due regard to the guarantees and assurances
under the covenants and agreements between
the Governments of the
Dominion of India and the heads df the former Indian States. Also,
provisions were made in various statutes conferring on the "Rulers" certain
privileges and benefits.
By Art. 366(22) a "Ruler" was defin,,d t<> mean
the prince, chief or other peraon by whom covenant and agreements
were entered into and who "for the time being" was recognised by the
President as the Ruler and included any person who "for the time being"
10
SUPREME COURT REPORTS
(1971]3 S.C.R.
was recognised by the President as the successor of such Ruler. Article
A
363 excluded the jurisdiction of the Supreme Court and all other courts
"in respect of any dispute arising out of any provision of a treaty, ·agreement, covenant etc." or in any dispute "in respect of any right accruing
under or any liability or obligation arising out of any of the provisions of
the Constitution relating to any such treaty, agreement, covenant" etc.
On September 2, 1970, a Bill intituled the Constitution (Twenty Fourth
:B
Amendment) Bill, 1970, and providing that "Articles 291 and 362 of the
Constitution and clause (22) of article 366 shall be omitted" was introdnced
in the Lok Sabha. The Bill was declared passed. On September 5, 1970,
the motion for, copsideration of the Bill did not obtain in the Rajya Sabha
the requisite majority of not less than two-thirds of the members present
and voting as required by Art. 368 of the. Constitution. The motion for introduction of the Bill was declared lost. A few hours thereafter the President of lndia, purporting to exercise power under cl. (22) df Art. 366
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of the Constitution signed an instrument withdrawing recognition of all
the Rulers.
A communication to the effect was sent to all Rulers in India
who had been previously recognised under art. 366(22) of the Constitution.
The petitioners moved this Court under Art. 32 of the Constitution
challenging the order of the PreSident "<!erecogni>ing" them as unconstitutional, ultra vires and void. · They contended that the President had no
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power to withdraw recognition of Ruler once recognised; that assuming
the President had such power, exercise of the power was coupled with
duty to recognise his successor; that the order of the President "derecognsing" all the Rulers en masse amounted to arbitrary exercise of power for
a collateral purpose; that the Order violated the constitutional mandates in
articles 291 and 362; that article 291 created an obligation in the Union
, of India to pay the Privy Purse and Privy Purse was property; and that
the Order being one without authority of law infringed the guarantee of
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the fundamental rights under Arts. 19(1) (f), 21 and 31 of the Constitution. ·The Union of India contended, inter alia, that the petition was not
maintainable, because, the source of the right to receive the Privy Purse
and to be accorded the privileges claimed was a political agreement and
the privy purse was in the nature of a political pension; that in recognising
or derecognising a ruler the President exercised a political power which
was a sovereign power and that the rights and obligations were liable to
by varied or repudiated in accordance with "State policy"; that the jurisF
diction of the Courts to enforce rights and obligations arising out of the
c:ovenant was excluded, because, the rights and obligations arose out
of act of state; that the concept of paramountcy of the British Crown was
inherited by the Union of India and therefore recognition of Rulership
was a "gift of the President"; and further that the petitioners stood excluded
bv article 363, for, they were seeking either to enforce the covenants
and al!"eements or were seeking to enforce the provisions of the Constitution
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"relating to" such convenants.
HELD : Per Hidayatullah, C.J. Shah, Vaidialingam, Hedge, Grover
and Dua. JJ. (Mitter and Ray, JJ. dissenting).
The oTti.\·r Of the President "derecognising" the Rulers is ultra vires and
illegal. [69 G; 100 C]
(Per Hiday<>tullah, CJ. (i) The action of the President withdrawing
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recognition of all Rulers is ultra vires article 366(22) and a
nullity.
Article 366(22) neither e:.;pressly nor by implication places the power in
the hands of the President to say that although a Ruler is in existence or
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a successor is available there shall be no ruler of any particular state. The
definition contemplates the existence of the Ruler "for the time bein&". The
phrase "for the time ·being" cannot mean that any person can be ap•
pointed who has no claim )Vhatever or that temporary appointments may
be made or that no appointment nee.d be made. The continuity of
a
Ruler of an Indian State_ is obligatory so long as the Ruler is alive or a
successor can be found.
The obligation to recognise a Ruler is bound
up with the other guarantees contained in articles 291 and 362 and the
definition in a'rticle 366(22) is merely the key to find a particular Ruler.
The withdrawal of recognition from all the Rulers renders the guarantees,
as also the relevant articles of the Constitution, inoperative. [58 A-HJ
(ii) The right to recognise a ruler, from out of several claimants, is
not an act of paramountcy. The selection has to be in accordance with
law and custom. The Constitution gave the right to the President to recognise a Ruler for the time being; but it cannot be stretched to give a paramountey of the same character as that enjoyed by the British Crown. To
claim such a paramountcy one has to ignore ~ompletely the arrangements
by which the Rulers parteg · with their territories and ruling rights and
were assured of their privy purses and privileges. The rights became constitutionally protected rights which so long as the Ruler's line was not extinct
belonged to the Ruler "for the time being. In short, when the guarantees
were given by the Constitution, paramountcy if any, went out.
Article
362 is the converse of paramountcy inasmuch as it
compels the t\\'Olimbs of government to have "due regard'' to the guarantees and assurances
given to the Rulers.
Nor can article 363 be said to "recreate" paramountcy.
That article was intended to keep certain matters outside the jurisdiction
of the courts.
The Rulers are citizens of India and the President or the
Government of India cannot invoke the doctrine of paramountcy to su~p
lain an illegal inroad upon the rights of citizens. [51 H-52 BJ
(iii) The argument based on act <If state ;s not of any more validity .
.
An 'Act of State' is not available against a citizen. It is a sovereign act
which is neither grounded in law nor does it pretend to be so. l\ is "a
catastrophic change constituting a new departure". Since there .ire no
sovereign or political powers under our Constitution every action of the
executive limb of government must seek justification in some law. The
very existence of article 363, which it is said incorporates some kind of
paramountcy or act of state, shows that there is no political power outside
the law;
otherwise an additional bar would hardly have been neces·
sary, rS3 BJ
Salarnan v. Sec~etary of Stale for India, [1966] 1 K.B. 613, State of
Sauravhtra v. Menon Haii Ismail, [1960J 1 S.C.R. 537 and Secretary of State
in Council for India· v. Karnachee Boye Sahaba, [18591 13 Moore P.C. 22,
referred to.
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(iv) Covenants and agreeme.1ts
cannot be said to create "imperfect
obligations" since the Constitution takes the matter into itself and gives
them its own guarantees. In so far as those guarantees became a part of
our Constitution and were included in various statutes they would be enforceable according to the tenor of the Constitution and other laws subject
of course, to any bar created by article 363. L55 GJ
'
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fl· Gibson & Ors. Assignees of J, Mal/andaino, Bankrupt v. The £u
India Co., 1,32, E:R. 1105, Peter Pazmany University, (Series A/B No, 61
p. ~31) Junsd1ction of the Courts qt Danzing, Advisory Opinion No. 15,
Series B. No. 15 and Sttite of Raiasthnn v. Shyatn Lal t\964J 7 S:C.R. 174
referred to.
2-L744Sup CI/71
12
SUPREME COURT REPORTS
[1971]3 S.C.R.
(v) It is not open to the petitioner to describe the action of the President as wanting in good faith without pleading any collateral fact.
Further, the reasons for a decision by the President cannot be probed into in
view of articles 74(2) and 361(1). L56 EJ
(vi) The argument on behal'i of the Union of India that article 291
only lays down the source and manner of payment but creates no right to
claim, 'receive or enforce payment is a complete misreading of th~ article.
Article 291 makes the amount payabJe to the Ruler and, therefore, creates
a right in him to demand it. The words "shall be charged and paid out
of etc." make the payment obligatory and when expanded the words read
"shall be charged on and shall be paid out of" etc.
The direction to pay
is in no uncertain terrris.
The recipient is mentioned in cl. (b) where the
article says 'and the sums so paid to any Ruler' and this shows who is to .
be paid. Therefore, the Article in addition tc the source and manner also
lays down that it shall be paid and paid free of taxes on income to the
Ruler.
The article is self-supporting and self-ordaining. The result .of
cha1ging a sum on the Consolidated Fund is to provide that this destination
shall not be altered even by vote of Parliament and the charging is sufficiently effective for ensuring the right application. [62 D-63 BJ
(vii) Article 363 does not bar relief to the petitioners. The words
provisions of this C'~nstitution' in the latter part of article 363 are not left
unqualified. The draftsmen would have referred to the numbers of the
articles i'f disputes of eve'fy kind under those articles stood excluded.
The
requirement is that it must be.a provision "relating" to a treaty, covenant
etc.
The words 'relating to' mean that the provision IDJ,JSt bear upon
treaties etc. as its dominant purpose or theme; it is not suffiCient if treaties
are menJioned there for some coilateral purpose.
So tested, (65 D-E]
(a) Article 362 is a provision relatin1 to a treaty, covenant etc.
Its
dominant theme is 'the rights, privileges and dignities of the Rulers under
covenants and agreements and, therefore the provision is one relating to
covenants and agreements. [65 G-H]
(b) Article 366(22) has for its dominant purpose the selection of
Rulers through the application of the covenant and agreements.
When the
President acts within the four corners of his authority 'the matter is barred
by article 363.
What the President has done is to take .away recognit'.on
from all Rulers and such a power does not flow from article 366(22) _and
the bar of article 363 does not apply to such a dispute.
The dispute arises
neither from the covenants etc. nor from the provisions of the Constitution.
Therefore, it ceases to have the protection of article 363. [66 C HJ
( c) Article 291 is not a provis\on relating to covenams and agreements
but a special provision for the source of payment of Privy Purse by charging them on the Consolidated Fund and for making the payment free of
taxes ; . .,_ incon1e; it does not in its dominant purpose and theme answer
the description in the latter part of article 363. The mention in Art. 291
of covenants and agreements is for its· own purpose so that the amounts
need not be specified. L67 H-68 BJ
[His Lora,hip did not express any opinion on the question whether
withdrawal of recognition on grounds which are sound and sufficient is
capable of being questioned in a court of law.]
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(viii) The petitions are maintainable under article 32 of the Constitution.
The obligation to pay the Privy Purse being absolute the right' to
claim when due subsists in each ruler.
As soon as an appropriation Act
is passed there is established credit-debt and the outstanding Privy Purse
becomes the property of the Ruler in the hands of the government. It is
also a s~m certain and absolutely payable. Therefore Privy Purse is property and any action to deprive the Rulers of their Privy Purses must be
an infringement of articles 19 and 31. [60 F; 62 0. 59 HJ
H.H. The Maharana Sahib Shri Bhagwat Singh Bahadur of Udaipur v.
The State of Rajasthan, [1964] 5 S.C.R. I, Madhaorao Phalka v. State of
Madhya Bharat, [19611 I S.C.R. 967, State of Madhya Pradesh v. Ranojirao Shinde & Anr., [1968] 3 S.C.R. 489 and Standard Marine Insurance
Co. v. Board of Assessors, 128 La. 717, referred to.
Langdell, Summary of the Law of Contract, P. 124 Blackstone Commentries Vol. II XXV pp. 390-398, referred to.
(Per Shah, Sikri, Shela!, Bhargava, Vaidialingam, Grover and Dua, JJ.)
(i) By the provisions enacted in article 366(22), 291 and 362 of the
Constitution) the privileges of Rulers are made an integral part of theConstitution and they cannot be deprived of these privileges arbitrarily.
Granting that under clause (22) of Art. 366 the President may withdraw
the recognition of a person a~. a Ruler, the power to nullify important:
provisions of the Constitution does not fl.ow 'from that clause.
The power
conferred by the clause has to be exercised consistently with and in aid of
the constitutional scheme.
The power may be exercised,
in the case
of first recognition, only in favour of a person who has signed the Covenant, and in favour of his successor having regard to the customs and laws
governing the state if the Ruler dies or becomes incapable df functioning
or his recognition is withdrawn.
By the use of the expression "for the
time being" in cl. (22) Art. 366 the President is not invested with an
authority to accord a temporary recognition to a Ruler nor with authority
to recognise or not to recognise a Ruler arbitrarily; the exp·ression predicates that there shall be a Ruler of the Indian State, that if the first recognised Ruler dies or ceases to be a Ruller a successor shall be ·a-ppointed and
that there shall not be more rulers at a given time. By the express injunction in Art. 53( I) the executive power vested in the President i• directed
to be exercised in accordance with the Constitution.
Therefore, the power
is intended to be exercised in aid of and not to destroy constitutional institutions. The power is plainly couefled with duty-a duty, to maintain constitutional institutions, the constitutional provisions, the constitutional :;cheme
and the sanctity of the solemn agreements entered into by the ptedecessor
df the Union Government, which are accepted, recognised and incorporated in the Constitution.
An order merely "derecognising" a Ruler without providing 'for continuation of the institution of Rulership, which is an
integral part of the Constitutional scheme,
is,
therefore,
plainly illegal. [74 C; 81 H-82 D, E; 83 Al
[The Court did not express any final opinion on the question whether
the expression "for the time being" in relation to the persons who had
entered into covenants
or agreements.
and in relation to the successor, implies that the President has the power in appropriate cases
and for adequate reasons to withdraw recognition.
Also, the Court
did not decide the question whether in certain exceptional circumstances the President may in granting recognition to a successor
depart in the larger interest of the country from the strict rule of
custom governing succession to the gaddi.] [74 B-C; 82 G-H]
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SUPREME COUR.T REPORTS
[1971p S.C.R.
(ii) The President is not invested with any political power, transcending the Constitution which he may exercise to the prejudice of citizens.
The Constitutional mechanism in a democratic
polity does not contemplate existence of any function which may qua the citizens be designated as
political.
The history of negotiations whlch culminated in the integration of the territories of the Princely States before the commencement
of the Constitution clearly indicates that tluo recognition of the status
of the Rulers and their rights was not temporary and also not liable
to be varied or repudiated in accordance with "State policy".
Nor does
the Constitution invest the executive branch of the Union with the power
to abolish the concept of Rulership, Privy Purse and the privileges on
the plea that these have become incompatible with "democracy, equality
and social justice".
The power of the President to determine the status
of the Rulers by cancelling or withdrawing recognition to effectuate
the policy of the Government to abolish the,concept of Rulers)Jip is therefore liable to be challenged in these petitions. (75 D; 76 BJ ·
Rai Sahib Ram Jawaya Kapur and Others v. State of Punjab, [1955]
2 S.C.R.
225 and Jayantilal Amrit/al Shodhan v. F. N. Rana.
[1964] 5
S.C.R. 294, referred to.
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Naivab Usman Ali Khan v. Sagarma/, L1965] 3 S.C.R. 201 and
Kunvar Shri Vir Ra;endra Singh v. Un,on of India and Others.
[1970]
2 S.C.R. 631 distinguished.
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(iii) An action not authorised by Jaw against tho citizens of the
Union cannot be supported under the shelter of paramountcy.
After
the withdrawal of British power and the extinction of paramountcy of
the British the Dominion Government of India did not and could not
exercise any paramountcy over the States.
The functions of the President of India stem from the Constitution, not from a "concept of the
British Crown" identified or unidentified.
What the Constitution does
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not authorise, the President cannot grant. Rulershlp is therefore not a
privilege which the President may in the exercise of his discr,.~ion bestow
or withhold. [94 C-D]
(i ... ) Clause (a) of article 291 which enacts that the Privy Purse
"shall be charged on and be paid out of the Consolidated Fund of India"
clearly raise an obligation to pay the Privy Purse.
A charge gives a
right to receive payment out of a specified fund or property in preference over others:
Jn the absence of clear indications to lhe c0ntrary
it would be difficult to hold that the expression "charge" used in the
context of the. financial 111atters of the state has a different meaning.
'.The Constitution does not recognise any sequence of priorities.
But
that does not alter the fundam.ental character of a charge that it specifies
a fund out of which satisfaction of the expenditure charged must be
made and that !Ile prescribed expenditure shall have priority in payment
to the person for whose benefit the expenditure is charged on the Fund.
The Constitutional obligation to proceed in the manner set out in Arts.
112, 113 & IJ4 imposed upon the President and the Parliament, implies, a right in. the person or persons in respect of whom the expenditure is to be incurred. That view is supported by other provisions fr!,
the Constitution. Clauses ·(a) & (b) of Art. 291 must be read with
articles 112, 113 and 114; they are parts of a single scheme. 'they
contemplate that the Privy Purse shall be included in the financial statement as charged upon the Consolidated Fund; it shall be beyond the
voting power of the Parliament;
its destination shall not be altered:
It shall be paid to the Ruler after the Appropriation Bill is passed, and
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MADHAV RAO V. UNION
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~hen paid it shall be free from liability to p;iy taJ<es on inCQ_me.
T!iis
1s an mtegrated process, which cannot be interrupted without dislocating
the constitutional mechanism. [87 A; 88 B; 88 E & 89 DJ
·
G//vind c;handra Pal v. Dwarka Nath Pal l.L.R. 35 Cal. 837 and
Raja Sri Shiva Prasad v. Deni Madhab, l.L.R: 1 Pat. 387, referred to.
(v) Article 291 does not merely incorporate recognition of the obligation to pay privy purse under covenants incurred by the Government
of the Dominion of India;
it gives rise to a liability de hors the cove-.
nants. After the Constitution, .the obligation to pay privy purse ·rested
upon the Union of Ind:a not because it was inherited from the Dominion
of India but because of the constitutional mandate under Art. 291.
The source of the obligatio>:1 is in Art. 291 and not in the convenant~
and agreements.
Reference
to the covenants
and agreements in the
article is for defining :he privy purse. The obligation which arose out
of the merger agreement and was on that ae1:ount an act of state shed
its original character on acceptance by the Constitution. The Union of
India cannot plead act of state as defence against claim by the Rulers to
Privy Purse. [89 F; 90 B-D]
Doss v. Secretary of State for India in Council, [187] L.R. 19 Eq.
509, Sa/eman v .. Secretary of State for India,
[1906) 1 K.B. 613 and
Union of India & Ors. v. Gwalior Rayon Silk Manufacturing (Weaving)
Co. Ltd. & Anr., [1964] 1 S.C.R. 892, held inapplicable.
(vi) An obligation which arises out of a constitutional provision to
pay to the citizens sums of money i!l recognition of obligations of· the
predecessor · Government may scarcely be called imperfect. A perfect
obligation pertains to the domain of law and justice and imperfect obli·
gation to the domain of benevolence. [89 EJ
(vii) The courts have jurisdiction to interpret and to determine tile
true meaning
of articles
366(22), 291, 36.2 and
363 and the tar
to the jurisdiction of the courts by article 363 is a limited bar. Article
363 excludes the jurisdiction Of the courts only in respect Of the matter
specified therein.
A provision which purports to. exclude the jurisdiction of the courts in certain matters and to deprive the aggrieved party
of the normal remedy will be strictly construed, for, it is a principle
not to be whittled down that an aggrieved party will not, unless the
jurisdiction of the Court.s is by clear enactm.eQt or necessary implication
barred, be denied recourse to the courts for determination of his rights.
It is within the province of the Court alone, to determine what the dispute brought before it is, and to determine, whether the jurisdiction of
the Court is, because it falls within one of the two limbs of article 363,
excluded qua that dispute. Jurisdiction to try a proceeding is barred
nnder the first limb of article 363 if the dispute "arises" out of the
provision of a covenant; it is barred under the second limb of the article
if the court holds that the dispute is with respect to a right arising ont
of a provision of the Constitution . relating to a covenant. A dispute
that an order of an executive body is unauthorised, or a legislative measure
is ultra vires, is not one arising out of any coven.ant. unrler the first limb
of article 363, merely because the order or the measure v10lates t~e
right of the citizen which, but for the act or measu~e, v:ere not ID
question. The dispute in such a case. relates to the va,hd\lY. of. t~e Act
or the vires of the measures. Exclusion of the Court' 1unsd1cllon by
the teffilS of the relevant word> in the second lin;ib of Art. 363 lies _in
a narrow field.
The expression "provisions of this Conslltut10n relating
16
SUPREME COURT REPORTS
[ 1971 ]3 _S.C.R.
to" means provisions having a dominant' and immediate connection with;
it does not mean merely having a reference to. If the constitutional
provision relating to a covenant is the source of the right claimed to
accrue, or liability claimed to arise, then clearly under the second Jimb
the jurisdiction of the court to entertain a dispute with respect to the
right or obligation is baned [94 H-95 D; 96 B-E, 99 FJ
(viii) It cannot be urged that the jurisdiction of the courts to enforce
rights a_~d obligations arising out of the covenants was excluded because
the rights and obligations arose out of acts of State and by constitutional
provision that exclusion was affirmed and extended after the Constitution.
There can be no act of State against its own citizens by the State. The
Rulers who were before integration of their States aliens qua the Dominion Government are now citizens.
Their r.ights and obligations which
arose from an act of State are now recognised and accepted by the
Union of India.
An act of state vanishes when the new sovereign
recognises either expressly or by implication !\14.! rights flowing therefrom.
Enforcement of those ri~hts and obligations is governed by the municipal laws, and unless the jurisdiction of the Courts is excluded in respect
of any dispute, the courts will be competent :o grant relief. [93 A-CJ
State of Gujarat v. Vora Fida/Ii Badruddin Mithibhanvala, [1964] 6
S.C.R. 461, referred to.
(ix) Article 366(22) is a provision relating to recognition of Rulers
and that is the direct- and only purpose of the provision. It is not a
provision relating to a covenant and the reference to the covenant-or
the agreement of the nature mentione4 in article 291 is only for determining who may be recognised as a Ruler. The limited excl~sion cif
-the jurisdiction of courrs in article 363 does not operate upon the
claim for a privy purse relving upon article 291. [97 C-E; 98 E]
Nawab Usman Ali Khan v. Sagarmal, [1965] 3 S.C.R. 201 and
Kunvar Shri Vir Rajendra Singh v. Union of India and O/':as, f,1970]
S.C.R. 631 distinguished and explained.
A
B
c
D
E
[The observations in Nawab Usman Ali Khan that the essential political character of the guarantee for the payment of privy purse is
preserved by article 363, and the obligation cannot be enforced in
any municipal court held unnecessary for. the purpcse of the <leciF
sion in that case and incorrect.] [98 D-EJ
(x) Reference to the covenant in article 291 merely identifies the
sum payable as privy purse; it does not make the article a provision
relating to the covenant.
The source of the right to receive the privy
purse is the constitutional mandate; it is not the covenant.
A dispute
as to the right to receive the privy purse is therefore not a dispute
arising out of the covenant within the first limb of article
363 nor is it
G
a dispute with regard to a right accruing or obligation arising out of the
provisions of a constitution relating to a covenant. [99 B-C]
(xi) Article 362 is plainly a provision relating to covenants within
the meaning of article 363., A claim to enforce the rights, privileges
and dignities under the covenants will therefore be barred by the first
limb of article 363 and a claim to enfon:e the recognition of rights
and privileges recognised by article 362 will be barred under the second
H
limb of article 363.
Jurisdiction of the courts will however not be
excluded where the relief claimed is founded on a statutory provision
enacted to give effect to perional rights under article 362 [99 DJ
A
B
c
B
E
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F
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MADHAV RAO V. UNION
17
(xii) Therefore, the Court will give effect to the constitutional mandate
in art. 363 oniy if satisfied that the dispute arises out of any provision of a
covenant which is in force and was entered into or executed be'fore
the
commencement of the Constitution and to which ••the predecessor of the
Government of India was a party, or that it is in respect of rights, liabilities
or obligations accruing or arising under any provision of the Constitution
in relation to a covenant; but since the right to privy purse arises under
article 291 the dispute in. respect of which does not fall in either clause,
the jurisdiction of the court is not excluded.
Again, the jurisdiction of
the Court is not excluded in respect of disputes relating to personal rights
and privileges which are granted by statutes. [99 F-Hl
(xiii) Since the order of the President is without authority of law
there is a clear infringement of the guarantee of the fundamental rights
under articles 19(l)(f), 21 and 31(1) of the Constitution. [72 HJ
The Court did not
express any
opm1on
(i) on the question
whether a dispute that an executive act or legislative measure operating upon a right accuring pr llability arising .out of a provision
is
invalid,
falls within the second limb of article 363 and (ii) on
the plea that the order was made for a collateral purpose.
On the view taken, the Court did not deal with the plea that Rulership was "property" and the Order of the President deprived the
petitioners of that property without authority of law.] [73 A]
Per Hedge, J. (i) The meaning given to the expression 'Ruler' in
article 366(22) is only for the purpose of the Constitution and not for
any other purpose.
Rulers of Indian States disappeared as soon as their
territories were merged with Iociia and all those quondam Rulers became
citizens of India. Their rulership is merely a status entitling them to
Privy Purse and certain
privileges.
Articles 291, 362 and
366(2)(a)
and (b) (before its deletion), as well as entry J4 of List I of Schedule
Vil referred to RUiers and, therefore, it became necessary to define that
expression. (160 E-G; 161 A]
(ii) Article 366(22) imposes a constitutional duty on the President
and for that purpose has conferred on him certain powers. The power
is one coupled with duty. The President cannot create a successor; he
can only recognise the successor.
Recognition n1eans the pct\\·er to
looate.
Hence the power conferred on the President under the second
part of article 3 66( 22) is a very limited p<:>wer.
The power has to be
exercised in accordance with law; in other words it has to be exercised
as a quasi-judicial power.
The expression "for the time being" in the
second part of the article is relevant as the question of recognition of a
new ruler arises on the death of each Ruler.
The expression contemplates the continuity of Rulership so long as the Ruler who entered into
covenant or agreement or a successor of his is in existence. (164 G, B-C)
(iii) The power to recognise the Rulers does not include the power
nvt to recognise.
The President cannot do indirectly what the legislature cannot do directly.
Ruler as referred to in some of the provisions of the G>nstitution is an entity created by the Con•titution to
further certain purposes recOl!inised by the Constitution. That entity
cannot be abolished either by the executive or by the legislature. Therefore, it is not possible to spell out a power to abolish the Rulership
under Article 366(22). [165 G, HJ
18
SUPREME COURT REPORTS
[1971]3 s.c.R.
[His Lordships did not go into the question whether a Ruler once
recognised can be derecognised by the President and, if so, under
what circumstances.]
(iv) The power of recognition of the Rulers cannot be claimed to
be a facet of the paramountcy enjoyed by the British Crow)l·,
Paramountcy is 1he very antithesis of nile of law and the goyernment of
A
India c.annot consider itself a superior. power in its relationship with
B
the citizens' of this country. Nature and scope of the power exercisable
by the President under a provision of the Constitution must be spelled
out from tjle language of the provision iiod from the purpose intended
to be served by the proviS(on. (166 ~G]
(v) The plea of State policy is irrelevant iii the context of this case.
If the Constitution has laid down a policy, that policy cannot be departed
from either by the legislature .or by the executive. Neither the IegisC
lature nor the executive can have a policy which runs counter to the
policy' laid down by the Constitution. [159 El
'
(vi) The stand taken by thr. Union of India that the concept of
Rulership, Privy ~TM' and the privileges guaranteed to the Rulers have
become. incompatibale with "democracy equity and social justice" raise
political issues.
This Court is not the forum for going into political
issues, nor is it concerned with political passions surrounding the issues
D
arising for decision in this case. [159 Bl
(vii) (liidayatullah, C.J. concurring). There is nothing like a political power under our. Constitution in the matter of relationship between
the exec\ltive and the citizens. The Constitution recognises only three
p!)wer viz., the legislative, judicial and executive. The executive cannot exercise any sovereignty over its citizens. The legal sovereignty
vests )Yith the Constitution and the political sovereignty with the people.
E
The President is a creature of the Constitution; he can only ar:t in accordance with the Constitution. [D-FJ
Kunwar Shri Vir Rajendra Singh v. Union of India & Ors .. [1970] 2
S,C.R. 631. distinguished.
(viii) The President on the advice of the Cabinet has disregarded
the mandate of arts. 53(i), 73(1), 291, 362 and 366(22). That being
so, his order must be held (a be ultra vires the Constitution; hence a
nullity. [168 Bl
(ix) The impugned order is also unconstitutional for the reason that
the power conferred .under art. 366(22) is exercised for a collateral
purpose. The circumstances under which the impugned order came to
be made show that there was attempt to do indirectly what the government could not do directly. Such an exercise of power is impermissible
under article 366(22). If the Constitution or any of its provisions have
ceased to serve the needs of the pc@ple, ways must be found to change
them but it is impermissible to bypass the Constitution or its provisions.
For that reason also the impugned orders must be held to be ultra vires
art. 366(Z2). [167 BJ
Balaji v. State of Mysone, [1963] Supp. 1. S.C.R. 439.
(x) Article 363 has to 'be read harmoniously with a:rticles 291 ·and
366(22). For the purpose of giving necessary direction to th~ Union
and State executive as · well as to
the Union and
State legislatures.
F
G
H
...
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c
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MADHAV RAO V. UNION
19·
the Constitution recognised the rights accruing and liabilities and obli·
gations arising under various agreements and covenants ·which recognition made those right, liabilities and obligations enforceable. But without article 363 article 362 womd have opened the flood gate of litigation. The Constituent Assembly evidently wanted to avoid that situation. That appears to have been the main reason for enacting article
363. [185 F-G & 186 A-CJ
.
Rajendra Singh's case, State of Seraikella v. Union of India ana Anr.
etc., [1951] S.C.R. 474, Visweshwar Rao v. The State of Madhya PrGdesli,
L1962] S.C.K. 1020,
Sri Sudhons11 Shekhar Singh Dro v. Thi
Sl/Jte of Orissa, [1961] 1 S.C.R. 779, H.H. The.Maharana Sahib Shrl B,,.,.
wot Singh Bahadur of Udaipur v. State of Rajasthan & Ors.
[1964} 5
.~C.R. 1 and Suite of Gujarat v. Vora Fiddali Badruddin Mlthlbarwo/o,
[1964] 6 S.C.R. 461, held inapplicable.
Nawab Usmanali Khan v. Sagarmal, [1965] 3 S.C.R. 201. dislin·
guished.
Nawab Bahadur of Murshidabad v. Karnanl Industrial Bank C.td.,
58 I.A. 21S: referred to.
(xi) Article 363 excludes the jurisdiction of courts only in respect of
matters coming under article 362. The contention that article 363
excludes also the right arising from article 291 becans. article 291 allO
protects personal righ\s falling within the scope of article 362, has no
force.
Privy Purse was taken out for special treatment by the Comlitution under article 291 and therefore it is excluded from the general
provision in article 362.
Further, there was no purpose in guaranteeing the payment of Privy PuJSe under article 291 and then taking away
the right to recover them under article 363. In the case of most of tbeRulers the right to receive Privy Purse was an enforceable right even
before article 291 came into force.
It is not easy to accept the contention that what was an enforceable right was made unenforceable by
the Constitution, [184 H-185 DJ
(xii) The liability undertaken under article 291 is a new liability
and not an affirmation of an existing liability arising under the covenants and agreements. The article is in no way linked with covenants
and agreements. The covenants and agreements only continue as evidence as to matters mentioned in the first part of ' article 291.
After
article 291 came into force there is no legal relationship between the
covenants and agreements and that article. The article read with Art.
366(2~) constitute a sell contained code in the matter of payment of
Privy Purses and those articles operate o~ their own force. [177 D, E]
(xiii) It is not possilile to accept the eontention that the expresSlon
"charged on ...... the Consolidated Fund of India" in article 291 merely
means that the amounts payable as Privy Purse are not votable and
that the expression neither creates a right in favour of the person in
whose benefit the charge is created nor is the Consoli4ated Fund pledged
for the payme~t of the Privy Purse. If an item of expenditure charged
on the Consohdated Fund merely means that the expenditure is nonvotable then there was no need to provide in article 113 that "so much
of the estimate as. relates to expenditure charged uoon the Consolidated
Fund of India shall not be submitted to the vote of Parliament"
That
J?art of article 113 was evidently enacted to make effective the siatutory
hen over the Consolidated Fund created in favour Of' the penon to-
20
SUPREME COURT REPORTS
[1971)3 S.C.R.
whom the payment had to be made.